The title itself may seem odd. The very idea of a litigating lawyer trying his case in the press – not for the improper purpose of potentially influencing the jury as is sometimes the case, but to influence the judge!
A year or so ago I moderated a panel at the NYSBA’s annual meeting in New York on the topic of “the ethics of lawyers trying their cases in the media.” An extremely prominent criminal lawyer in town (you can guess who it was) actually said that part of his protocol in talking to the press in a high-profile case – he has had many — is to influence the judge’s thinking about the case. Meaning, I suppose, if the responsible reporters of, say, The New York Times or the Wall Street Journal in particular, subliminally articulate a sympathetic view of what the lawyer is putting out there to them, as they might occasionally do, the presiding judges aren’t necessarily oblivious to what they’re reading. And it just might sink it. I must admit, especially from whom this was coming, I thought the comment this lawyer was making had an air of brilliance to it. And in reading coverage of high-profile trials by the Times and Journal ever since, I’ve been wondering about what this lawyer had candidly said.
Just out of the corner of my eye during the discussion, though, I encountered the equally well-regarded federal judge participating in the panel, seated to my left. I knew, for a fact, that the judge had great respect for this lawyer and his abilities. Still, the expression that appeared on the judge’s face – and having tried an important case before that judge – didn’t really hide the fact that the judge thought the lawyer was way off base. Not that he was doing something at all unethical; but that his strategy simply didn’t have a prayer of being successful (at least with this judge and colleagues whom the judge might see as fellow travelers).
Of course, some judges might be more receptive to what my panelist lawyer might have been proposing – whether or not they might actually realize what the lawyer was doing. And it might depend on whether the contents of the lawyer’s “lobbying efforts” were captured by the news sections of these particular newspapers or, rather, their editorial pages. To be sure, this lawyer wasn’t suggesting that he was conducting his efforts through tabloids such as the New York Post – even though, to be sure, the Post, too, might subliminally influence some judges.
But here’s the thing. Judges routinely instruct jurors to stay away from the media’s coverage of their trial – completely. But, no one expects judges to stay away from coverage of their cases, and they presumably don’t – particularly given the coverage by responsible outlets. And there may be great reason for judges to actually to view what these journalists are saying, in particular in whether they believe that the judge is presiding fairly – to both sides.
Many years ago, I moderated a program whose panel included the late Judge Harold Rothwax. He was an extremely stern and combative judge, nicknamed the “Prince of Darkness” by his defense lawyer detractors. He presided over the horrible Joel Steinberg case which had been televised. During the panel discussion, which focused largely on televised proceedings, Judge Rothwax mentioned that his wife who had been watching at home told him one evening after court that he had been unnecessarily rude and unpleasant to a defense lawyer during that day’s session, and that he accordingly changed his demeanor going forward.
Now, of course, neither the Times nor the Journal were the judge’s wife – but suppose they had said the same thing in print, as they conceivably might have (and maybe did)? Isn’t it possible, even likely, that their commentary might have had a meaningful impact on the judge’s demeanor going forward? This is hardly the same kind of thing that my panelist defense lawyer who led off this article would be trying to do with the press, but you get the point.
It may very well be that the judge that I discussed earlier might have been a bit naïve on this issue if the judge was of the belief that judges aren’t in any way influenced by what reporters might have to say about how a trial might be proceeding, or the impact of a particular fact or evidence or what the trial lawyer is trying to present as argument. Or maybe the judge was exactly right in perceiving the impact that a lawyer might be trying to “sell” to a particular reporter. Great lawyers or even run-of-the-mill lawyers might often, indeed, see it differently.
But knowing, as we suspect, that at least a majority of judges are reading the coverage of the cases they are sitting on, trial lawyers would be foolish, indeed, to ignore the possibility that their commentary to journalists may have a real impact on how a judge might be presiding over a case.
There will be judges who disagree with what is said here, and that’s totally fair. Lawyers, however, must try their cases in the way they think best. And they may do so sometimes believing that judges, always human, may be subject to subtle influences of which they themselves are not always aware.
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Joel Cohen, a former state and federal prosecutor, practices white collar criminal defense law of counsel at Ruskin Moscou Faltischek, P.C. He is the author of “Blindfolds Off: Judges on How They Decide” (ABA Publishing, 2014) and is an adjunct professor at both Fordham and Cardozo Law Schools.
Reprinted with permission from the May 13, 2026 edition of the “New York Law Journal”© 2026 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.